Hawaii Legislature Informational Briefing Regarding the Akaka Bill by U.S. Senators Inouye and Akaka, and U.S. Representatives Abercrombie and Case, on March 31, 2005 (Hawaiian language, Christian prayer, failure of Legislature to perform due diligence)

On March 31, 2005 two committees of the Legislature of the State of Hawai'i held a joint meeting to receive information about the Akaka bill from Hawai'i's two U.S. Senators and Hawai'i's two U.S. Representatives. Senator Akaka was unable to attend due to a prior commitment, but sent a message which was read aloud. The two committees are the state Senate and House committees directly responsible for (ethnic) "Hawaiian affairs."

This informational briefing was televised live over Hawai'i's public access TV, and the videotape was aired again several times during a period of several weeks.

The Legislature's committees apparently asked the federal delegation in writing beforehand to comment broadly on two topics (inferred from reading the testimony in the transcript): (a) At the federal level: what is the current status of the Akaka bill in Congress, what will be the procedures for passing it, and how likely is it to get enacted; and (b) At the State level: what should the Legislature and the people of Hawai'i be doing to help get the bill passed and to prepare for implementation of the bill once it has been enacted.

Following the four formal statements from Hawai'i's federal delegation, there was a question-and-answer session where only members of the two committees were allowed to ask questions, but members of the public could not participate. The entire event, gavel to gavel, lasted one hour and thirty-six minutes. That entire period is covered by the transcript below. A small room was used for this joint committee hearing, rather than the Capitol auditorium, in order to discourage public attendance and possible protest.

A person who prefers to remain anonymous created most of the following transcript by listening to a videotape and typing what was spoken. In addition, the written statement from Senator Akaka, which was read aloud by Hawai'i state Senator Colleen Hanabusa, is also available on Senator Akaka's official U.S. Senate website. That document and its URL have been copied at the bottom of this webpage, after the end of the transcript.

Ken Conklin has provided Hawaiian-language elements, and translated them [into English, in brackets]

**** Opinion comment by Ken Conklin:

The transcriber mentioned that the Doxology was sung in Hawaiian language. But the transcriber did not transcribe it, perhaps because he/she does not know the language. I therefore decided to listen to the original videotape. In doing so, I also discovered that the transcriber had not transcribed an opening prayer which immediately followed the singing of the Doxology (the prayer was given by legislative committee member, Representative Ezra Kanoho). I therefore added both the Doxology and the prayer to the transcript.

The transcriber's failure to include both the Doxology and the prayer is very understandable, because such Hawaiian-language and religious elements are often performed at the beginning of Legislative hearings and might not be thought of as part of the official proceedings. But the more I thought about this, the more I realized that the Hawaiian language and Christian prayer are indeed political activities intended to influence the audience, and they are very important parts of the entire event.

Hawaiian language is often used in political activity to lend an aura of respect for "indigenous rights" and to provide a sense of mystery and solemnity. The situation is comparable to the way the Roman Catholic mass 50 years ago was performed in Latin despite the fact that very few members of the congregation understood Latin (most ethnic Hawaiians today do not understand or speak Hawaiian). The use of Latin made everything seem especially sacred, dealing with mysteries beyond the ability of most parishioners to comprehend; and it gave the congregation confidence in the divine authority of the priest. Likewise, many cultural and political events in Hawai'i begin with Christian prayer, often delivered in whole or in part in Hawaiian language, which most of Hawai'i's people, including most ethnic Hawaiians, do not understand.

The Doxology is explicitly Christian. The prayer offered on this occasion was also explicitly Christian, invoking the presence of the Father, Son, and Holy Spirit to bring everyone together in support of the Akaka bill. All of this is highly improper in an official hearing of the state Legislature, where people who are not Christian have equal rights and should not feel relegated to second-class status.

The entire hearing also illustrates the fact that the Legislators take it as gospel [pun intended] that ethnic Hawaiians are entitled to superior status on political issues, and that the Legislators have no wish to challenge the legitimacy of the Akaka bill. The questions by the Legislators were all along the lines of how can we help generate support for the bill, how can we calm the waters and prevent the public from being concerned over the "us" vs. "them" racial conflict inherent in the bill, and how should we Legislators help provide access to state genealogical records that will be needed by ethnic Hawaiians seeking to prove their Hawaiian race in order to join the Akaka tribe.

This "informational briefing" at the Legislature becomes more disturbing after reading the transcript several times and thinking carefully about the substantive and ceremonial issues it raises. The Legislature is clearly negligent; it is totally failing to perform the due diligence the public expects it to perform to protect the people of Hawai'i against unconstitutional leglslation that will have devastating consequences affecting us all. Instead of acting like parishioners at a church ceremony or cheerleaders at a school sports event, the Legislature should be raising pointed questions and demanding clear answers.

The same two committees of the Legislature held a series of eight hearings on five islands during a nine day period at the end of October 2005, to hear testimony and advice on what laws the Legislature might pass to circumvent decisions by the 9th Circuit Court that are adverse to OHA and Kamehameha schools. These two committees are strongly partisan in favor of one racial group, with zero concern to protect the interests of the people of Hawai'i as a whole. For coverage of those hearings in October 2005 see:
http://www.angelfire.com/hi5/bigfiles3/HawnAffrsLegislHrngOct2005.html

**** End of opinion comment

The transcript is below. Bear in mind that oral speech is often punctuated with interjections like "um", or with repetitions of phrases as a speaker gathers his thoughts, or occasional words spoken too softly to be intelligible to a listener watching television.

Kanoho: Thank you very much Chair Saiki for asking that a pule [prayer] be rendered. I'd like to ask all of you to first join in, in the singing of the Doxology in Hawaiian. And we all sing much better when we are standing, so mai [come; join]

[All present stand up.]

[The Doxology is sung in Hawaiian by everyone in the room who knew it, which is most everyone in the audience except Inouye, Abercrombie, Case, and some state Legislators. Sounded like church, but actually was in a room in the state Legislature where committee hearings are held.]

[** comment:
This ancient Christian prayer, known as the Doxology, was translated into Hawaiian language by the leader of the first group of missionaries, Rev. Hiram Bingham, at the beginning of the missionary period, in 1820. It is sung on this occasion in unison in Hawaiian, led by state Representative Ezra Kanoho. The English version is familiar to all Christian churchgoers:

"Praise God from whom all blessings flow.
Praise him all creatures here below.
Praise him above ye heavenly host.
Praise father son and holy ghost.
Amen."

When sung in Hawaiian, the music is the same. The words have similar conceptual meanings when taken as a whole, but different literal meanings from the English version; because Rev. Hiram Bingham wrote the Hawaiian version, around 1820, in such a way to make the music stay the same and therefore the number of syllables per line had to remain approximately the same. See below for 3 videos featuring the Doxology being sung in Hawaiian and English.

Eternal God and most gracious and loving Heavenly Father, we bow in reverence and in thanksgiving for thy most precious gift to us of life, health, strength and talent, for positions of responsibility in government in our communities and homes, and for joining us here with members of our Congressional delegation to whom we express our most grateful appreciation for their good works in the U.S. Congress, and for taking the time and effort to discuss with us the status of the Akaka bill, so critically important not only for Hawaiians in terms of self-determination and protection of entitlements, but to all the people of this land in providing justice and in righting the wrongs of more than 100 years ago. We ask Dear God as Hawaiians and Hawaiians at heart, the many who have come this morning, that we may be united in this effort, but to respect differences which may continue to exist. Grant us thy knowledge and wisdom and the courage to act in this and all issues before us, that we may fulfill the responsibilities and trust that thou and the people of this land have placed in each of us. We pray not as our will, but as thy will be done; in the name of the Father, the Son Jesus Christ Our Lord and Saviour, and thy Holy Spirit. Maka'i no ka Makua, a o Ke Keiki, a me ka ‘Uhane hemolele. [The Father, the Son, and the Holy Spirit truly watch over us.] Amene. [Amen.]

Audience in unison: Amene. [Amen.]

[Everyone sits down.]

Saiki:

Thank you Representative Kanoho. On Jan 25, 2005, the members of Hawaii's congressional delegation introduced S147 and HR 309 more commonly known as the Akaka bill in the United States congress. The purpose of the Akaka bill is to reaffirm the long-standing historical and political relationship between native hawaiians and the United States and to extend to native Hawaiians the federal policy of self determination that is provided to other indigenous peoples. The co-chairs have arranged this briefing for two reasons. First to give our committee members and the general public an opportunity to hear a status report of the Akaka bill in the Congress, and second, because the Akaka bill involves an unprecedented issue of statewide and national significance. We are dealing with the issue of preserving the culture and dignity of Hawaiian people. We have invited our congressional delegation to report their progress in advancing the Akaka bill. After their statements we'll take questions from our committee members. We would like to begin with our senior senator who will discuss the status of the Akaka bill in the United States senate. Senator Inouye.

Inouye:

Mr. Chair and Madame Chair, Distinguished Members of the Committee. The, your Congressional Delegation is most pleased and deeply honored by your invitation to join you in discussing this important matter. But before I proceed, just a little background.

The first bill was introduced on July 20th, 5 years ago, the year 2000 and as some of you recall, that measure was reported out of the committee as part of the calendar of the United States Senate. It was debated. However, under our rules, a member can place a "hold". That means you can't go anywhere. And there were several holds on the bill. The most recent one, as the chair indicated, was introduced this year, and we have been assured by the leadership, both Republican and Democrat, that this measure will be considered on the floor and voted upon no later than August the 7th of this year.

This measure is the product of many, many years of consultations, discussions with a multitude of people. For example, as some of you may recall, in September of 19, no, in September of 2000, five days of hearings were held in the Blaisdell Auditorium. It was always standing room only. Every person in the state of Hawaii who desired to make a statement was accorded that privilege. We patiently sat through and at times many hours of heckling and rather violent statements. Nonetheless, the committee stepped forward. We would have gone to all the islands, but, as some of you recall, Senator Akaka had a very serious knee operation that required him to be on a wheelchair. But we made certain that neighbor islands were well represented.

This bill is the product of many years, many discussions, many debates. Well, when the matter was discussed in the United States Senate, most recently in the committee, it was reported out on March the 9th with the assurance that it will have a full consideration.

I am convinced that we will have that vote. I am convinced that we will prevail by a hefty margin, however, I think it would be unwise on our part to assume that the passage of this measure is the end of the process. It is just the beginning. All it does is to begin the process by which the full authority of a sovereign entity will be granted to the Native Hawaiian people.

For example, once the measure is passed, the Secretary of the Interior, as the agent and trustee of the United States Government must appoint a nine member commission. And this process alone will take about half a year and the law provides that.

Then the, a roll of those who consider themselves qualified to be members of this new Hawaiian entity would have to be collected. That's a long process. And, uh, we have no idea how long that will take. That process must include, for example, not just the compilation but a certification that every person on the roll is qualified as Native Hawaiian. That he can trace his ancestry to someone who was a citizen of the kingdom on July the 1st 1893. January 1st 1893.

Then upon certification the council will have to conduct elections, to elect the officers of this new temporary sovereign entity. And this has to be certified.

Once this is done, the legal relationship between the United States and Native Hawaiian governing entity is reaffirmed, it is extended with Federal recognition.

But then there are many other steps beyond that. For example, I, I don't wish to belabor this but the law says there shall be determination as to the powers and authorities of this new sovereign entity. Now the Native Hawaiian entity may want to have civil and criminal jurisdiction over its citizens. So that is a very important subject to negotiate. Can they arrest someone? Can they convene a court? All of these matters will have to be discussed.

Ah, for example, uh, once the sovereign entity is developed and we have set aside lands, transferred title to the sovereign entity, are the citizens gonna receive a fee-simple title to such lands? And if they do can they sell it? If that ever happens, then you'll have the second mahele. So this is not the end, it is just the beginning.

But the beginning is a very important one where the congress and the government of the United States will reaffirm this legal and political relationship that once existed between the people of Hawaii and the government of the United States. That's an important step.

But the process beyond that will be lengthy and at times turbulent. But I'm certain that the new government entity will do its part and proceed to bring about the end that is desired by all of us here. So with that, Mr. Chair and Madame Chair uh, I wish that other members of the delegation can be called upon. Can I call upon Senior Representative?

Saiki: Yes.

Abercrombie:

Thank you very much. I'm delighted to be back here again, uh, working with you folks, uh, as a former colleague. Uh, I think it's appropriate for Senator Inouye to speak on behalf of himself and Senator Akaka to outline some of the issues involved in the Senate because the hearing here today, or rather, the informational briefing uh, asked us to talk about the status, and uh, the Senator spoke pretty clearly about what the status is in the Senate and I'm just speaking status in the House.

And as Representative Saiki understands only too well, the House is a much different animal from the Senate. Uh, as it gets a big smile from Senator Hanabusa at this stage.

Uh, we have, we've wrestled with a lot of different demons in the House of Representatives. The best way I can put this, and I'm sure that Representative Case will be able to affirm um, my description after his sojourn so far in the House. Uh, if you, if you've ever watched Australian rules football on ESPN II, you'll have a fairly good idea of what happens. See, Senator Inouye is getting, saying what? What's that? What's he doing? See, he's engaged in a, in a, in a stately and decorous uh, uh, set of activities in the United States Senate there and we're a little bit more of a scrum down in, in the House, so uh, uh, we're, we're gonna have to deal with it a little bit differently.

But, uh, the logistics of it, the Legislative logistics are, are plain at this stage. Um, uh, we will await what is gonna take place in the Senate. Uh, we have I think done our homework properly and well in the House um, the uh, uh, Chair uh, and Committee members in the resources committee which is the principle vehicle for the bill in the House are fairly familiar with the Akaka Bill and its implications and are favorable toward it. Uh, we have worked assiduously over the past five going on six years now, to make sure this is not a Republican vs. Democratic situation. The uh, it goes beyond bipartisan, it's, it's a nonpartisan bill.

Uh, luckily uh, for us, uh, many members of Congress, both Republican uh, and Democrat uh, already deal with Native American issues in their districts. Uh, land issues, money issues. The issues of what constitutes a proper roll. Membership, uh questions about the uh, uh, distribution of funds, uh, the settlement of land issues between states and uh, and uh, the governing entities in various Native American uh, tribal and village and corporate entities when we get to Alaska, So a lot of this groundwork has already been laid politically.

So I think there's a very favorable climate in the House of Representatives now for that. I would uh, uh, think that what needs to happen in the House or in the Senate is well in hand.

The question for us is uh, not whether we can pass it out of committee in the House of Representatives or pass it on the floor uh, of the House uh, subsequent to to uh, leaving the committee, but, whether or not the uh, Bush Administration will look favorably on the legislation. Uh, if it does not look favorably on it then the, my difficulty will be or at a difficulty my difficulty will be um, that there's a reluctance on the part of the of the Republican leadership in the House to put it on the floor for a vote because they don't want to something up for a vote that passes then the President vetoes it then they have to to uh, deal with the question of trying to override a Presidential veto which they'd be very reluctant to to to do. So, uh, I think it's quite clear at this stage that um, the um, not just the attitude but the position of the Bush administration has to become clear. If that uh, is resolved uh, favorably then I think uh, the passage of the of the bill essentially in it's present form is not preordained but certainly is enhanced and and it's likelihood is considerable.

Inouye:

Mr. Chairman, may I now call upon our new member of the delegation? He may be new but he's invigorating. Ed Case.

Case:

Thank you very much uh, Senator and uh, Neil. Uh, Madame Chair, Mr. Chair, uh, members, thank you so much for having us here today. I have to say that I've never had the opportunity to testify before a state legislative committee and I can't think of a, better issue to testify before my former colleagues on, than this one and I appreciate the chance. Um, having played a little rugby in my time, I have to agree with Neil's assessment. The um House can be a very um, um, um, rowdy place and we want to make sure it stays uh, nice and calm.

Uh, I can't praise enough the work that Senator Inouye and Senator Akaka and uh, Congressman Abercrombie have done over the last couple of years, number of years. To uh, educate their members, to massage their members to keep this nonpartisan, this is a nonpartisan issue. Uh, Neil serves for example on the house resources committee for years and years has had many many votes, has a very good relationship with Richard Pombo the very conservative Republican from California who is going to support this bill. Why? Because of the relationship that Neil has.

This is true on both sides of the aisle. We want to keep this nonpartisan. That's our biggest goal right now. We have two goals in the House and the Senate.

Number one, keep it nonpartisan. We don't want partisan issues, partisan sentiments, uh uh, partisan approaches uh, seeping into this. Uh, House, uh the House and the Senate are partisan enough in Congress right now and everything we need to do back here collectively to keep that off the table is what we need to be doing.

Um, I completely agree with Neil and with Senator Inouye that White House support now is probably the single biggest issue we can accomplish. We don't need to wait until after this is out of the House and the Senate to deal with the White House. The White House needs to support it now. Why? Because there's communications going on between the House, Senate and White House now; open, active communications. Um, with that support this bill will move, without that support it is still problematic and we are all needing to work on that.

Um, I appreciate uh, just uh, your efforts to try to and um, coordinate on the big picture, because I think we all know that when we're talking about the future of the Native Hawaiian people in Hawaii, the preservation and sustainability of that culture that is at the core of Hawaii, we are implicating all kinds of stuff. We're implicating Federal law, we're implicating State law, we're implicating county law, we're implicating non-profits, we're implicating uh communities and citizens and we need to be on the same page at all times.

I've said this is the single most important issue on my legislative agenda and I've also said, and I've given you my testimony and this is the single most important issue that's been before Congress since statehood for Hawaii.

And we need to be uh, keeping ourselves uh, all in line on this and that's what we're doing today and I appreciate that.

It's important, I think, uh, to just lay out for what you've asked me to talk about, which is while this is all going on, what should we be doing? Uh And after the hoped-for and presumed passage of this bill, where does the state uh fit in?

Uh to go back and amplify what Senator Inouye said: Exactly what does this bill do and what, more importantly, is the timing? Timing is always an element of what we want to do here.

Um, I always tell people that the core of this bill is about two sentences long. Really no more that two sentences. It's the Federal government reaffirms the special political and legal relationship between the United States and the native Hawaiian people and sets up a process for formal federal recognition of that relationship.

Now that's in the bill, that's two sentences, But there's a whole bunch of procedure uh, getting from A to Z on that.

Starting with the passage of the bill, Senator Inouye has outlined about 180 days to form a commission to prepare the roll. We've got a period of about 2 years, up to 2 years in which that commission in fact identifies native Hawaiians that want to participate uh in the reorganization of new native Hawaiian entity.

After that 2 years, assuming we max it on the 2 years, and I hope we don't, but assuming we do. And by the way, we, as the native Hawaiian people in this case, the native Hawaiian people forming their own roll.

After that we go through a process of certifying the roll, after that, we go through a process of the native Hawaiian people exercising fundamental self-determination to identify the governing entity that they want and the areas that they want to discuss with the Federal government.

After that we come back to the Federal government again, the Federal government says "Yea or Nay". If the Federal government says "Yea" we're all ready to go. Federal recognition is extended.

After that, we have a whole series of negotiations that occur on the issues that Senator Inouye outlined. What exactly is gonna be the land and uh natural resource allocation? What exactly are we going to be doing with the ceded lands?

Are we in fact going to be uh, changing in any way, shape or form, or wanting to change in any way, shape or form the arrangement we have under the Hawaiian Homestead Act of 1920.

Um, what are the allocation of civil and uh criminal jurisdictional issues uh going to be? All of that happens after federal recognition, after we have a native Hawaiian governing entity with its own set of organic documents in place. We have a functioning native Hawaiian governing entity.

Now if you add up the timing what you can get to pretty fast is a minimum of 3 years and more likely 3 to 5 years and during that 3 to 5 years we will be determining the future, I think and hope, of the native Hawaiian people within their own land their ability, their ability to determine uh their own destiny with their own resources.

And that's worth us doing this carefully. If we can pull this off well, we will have what we all want. We will have what we all want. So we're talking about not only the effort to pass the bill but the effort to participate in the 3 to 5 years after passage of the bill uh with the native Hawaiian people and the identification of the issues they want to work on and identify and then the implementation after that period through further negotiations with the state and with the federal government both are both of those are identified uh, in the bill as participants in this post uh federal recognition post formation uh negotiation.

Um, What should we do? What should the state do right now what should the people of Hawaii do while we're going through this process? Well first of all support us wholeheartedly, we need support at every single level regardless of partisanship regardless of anything we need your support we feel we have your support. We feel when we walk into Congress and say that the people of Hawaii by and large support federal recognition for native Hawaiians whether they are native Hawaiians or non-native Hawaiians that we can make that representation as strong as possible and we need to maintain the ability to make that representation in the crucial months that lie immediately ahead of us.

So #1, we need to keep the waters calm. The waters need to stay calm. The waters need to be such that we can continue to represent.

Um That means that some of the issues that we have struggled with at the state level over the last couple of years that have been on occasion divisive uh in terms of the relationship that we all have here in Hawaii I believe need to be simmered down for little while.

Um this is for example not the time to get in I think into a huge divisive debate about you know ceded lands or about some of the other issues that have been problematic that do need to be solved for our #1 goal has to be federal recognition and if it means keeping things uh um in an atmosphere of of consensus uh that's what we need to do.

I think we obviously need to proceed where we need to proceed on the issues that clearly do need attention that are not necessarily implicated in federal recognition, or whether native Hawaiian people through their representatives believe that they're going in that direction anyway. Uh, where we're not gonna kinda foreclose options by going at that.

We've had a great decade, for example, with the Department of Hawaiian Homelands uh, since the settlement in 1994 and through a succession of very good directors and bipartisan state administrations and legislatures that have moved this process forward. That can obviously continue, we don't need to put that on hold. That's good stuff, I think everybody would agree with that. Uh, there's no reason why we can't walk through the uh continued debate over what is a fair interim, um, revenue base for the Office of Hawaiian Affairs on on ceded lands. Perhaps not a permanent solution because I think that will come with federal recognition, post-federal recognition but certainly the issues that we've had in terms of what is fair and right and just in the short midterm. I think those things can be done. But I think where we start to talk about some of the much bigger issues that we have talked about here.

For example, should the Office of Hawaiian Affairs and the Department of Hawaiian Homelands uh, come together in a native Hawaiian entity. First of all, the timing is wrong for that discussion uh, given federal recognition. And second of all, the whole concept is here is that's the decision for the native Hawaiian people in the context of federal recognition as a native Hawaiian governing entity recognized by the United States.

So I think what we need to do is to address and solve the issues that need to be addressed and solved in the short term without foreclosing options down the road that the native Hawaiian people want to um, go forward with. The whole idea here, after all, is self-determination uh, the whole idea here is for us collectively to work with our federal government provide to a process and assistance for permanent sustainable self-determination for the native Hawaiian people. And we don't want to foreclose options to them. We want to be able to get to a point where, where any, anything that virtually is on the table at least for discussion whether it be uh, the compilation of the Hawaiian Homelands Act of 1920 or the Admissions Act which stands uh, for for ceded lands and other issues. Uh, we don't, we want to be able to provide out of the box thinking when the time comes.

And finally, we want to be in the position where at the end of the day they can all come together uh, somewhere around uh, five years from now. I'm afraid to say faster if possible. I mean, the faster we move this along, the better frankly. But, you know this, this process has come a long time in that amount of time is the amount of time that will probably take us to work all the way through. And we want to be able at the end of the day to look back and say that we were all on the same page in terms of of of moving forward with federal recognition, but we were all supportive of the native Hawaiian community as it went through the process. And it's their process to negotiate with the federal government to identify the roll, to identify the organic documents and negotiate with the federal government and we're supportive of that. And then we also came together after that to facilitate those negotiations with the federal, state government and others and then also at the federal or state level in your seat or our seats uh, to support implementation procedures that needed to be done. I thank you very much for your time, I think we're all happy to answer questions.

Inouye:

Mr. Chair. In closing our remarks, um, may I acknowledge with gratitude, the help that we have been receiving from the Governors office. The Governor has personally participated in negotiations and discussions with us. The bill before us is the product of such negotiations. I'd also like to single out the Attorney General, Mr. Bennett, he has been extremely helpful to the Senate committees and the House committees.

I cannot overlook the invaluable work that has been done by OHA. OHA has been extremely helpful, in particular the Chair Miss Apoliona. And all of the civic associations and the Hawaiian cultural groups, they have been extremely helpful.

In following up with the statement of Congressman Case, it would be extremely helpful if the Legislature can once again pass a resolution, as you did two years ago, reaffirming your support of this concept and this bill. Because this bill technically is not the bill that we introduced in 2000. I would also wish that the um, native Hawaiian organizations, if it is their inclination, would do the same. Because it is one thing for us to say yes people support us, but if we have these documents making it official it would be extremely helpful. I think that this year the possibility of the passage of the bill is good. But as we've all pointed out, the process that follows after that may be lengthy.

I hope that we can conclude this in five years but as you know Native Americans, the Indians, have been negotiating for the past 50 to 100 years on certain subjects. And even with the latest, there are certain tribes that are negotiating compacts to have gaming on their lands and that's been ongoing for years and years and years. Negotiations, as you're well aware, may be concluded in 10 minutes, or it may take 10 years. So with that, Mr. Chair, thank you very much.

Saiki: Thank you very much. We also have a statement from Senator Akaka. Chair Hanabusa is gonna do that for us.

Hanabusa:

Thank you members. Um, we have been provided information which Senator Akaka has forwarded to us. Includes a copy of his statement, uh, a section by section analysis of the bill, S-147 amendment as well as uh, sort of like uh, a power point presentation that I believe if Senator Akaka was here he would present. I received a call from his office asking that I read his statement. Uh, the public doesn't have copies of this, so please bear with me.

Chairman Hanabusa, Chairman Saiki and committee members. Mahalo for the opportunity to share information pertaining to S-147 the Native Hawaiian Government Reorganization Act of for 2005, legislation I have introduced with Hawaii's Congressional delegation to extend the federal policy of self-governance and self-determination to native Hawaiians.

I regret that I am unable to join you this morning. I had previously scheduled appointments with students on Maui that I was not able to reschedule upon learning of today's briefing late last week. I have been informed that your committees are interested specifically in the prognosis of the legislation during the 109th Congress and in learning what the Hawaii State Legislature should do, if anything, after the enactment of the legislation. I thank you for your support for this bill.

As you know, we've been working to enact this legislation since 1999. We appreciate the resolutions passed by the Hawaii State Legislature in support of federal recognition for native Hawaiians. We have also been working very closely with Governor Linda Lingle to enact this measure.

I have made clear to my colleagues in Washington D.C. that this is a nonpartisan issue. This is a team effort and we greatly appreciate the efforts of everyone involved who's working to enact this bill. Before I address the two questions regarding the bill, I'd like to provide some background on the legislation.

S-147 The Native Hawaiian Government Reorganization Act was introduced on January 25, 2005 and was referred to the Senate Committee on Indian Affairs. On March 1, 2005, Senate Committee on Indian Affairs held a hearing on the legislation. Witnesses included Governor Lingle, who was accompanied by Hawaii State Attorney General Mark Bennett and Hawaiian Homes Commission Chair Micah Kane, Haunani Apoliona, Chair, Office of Hawaiian Affairs Board of Trustees, Jade Danner, Vice-President Council for Native Hawaiian Advancement, Tex Hall, President, National Congress of American Indians, and Julie Kitka, President, Alaska Federation of Natives.

On March 9, 2005 the Senate Committee on Indian Affairs voted to adopt the substitute amendment offered by myself, Senator Daniel K. Inouye and Senator John McCain. The committee also voted to favorably report the bill as amended. On March 18, 2005 Senator Inouye and I wrote to Majority Leader Bill Frist and Democratic Leader Harry Reid to request that S-147 be brought before the Senate for debate and a roll-call vote at the earliest opportunity.

The Native Hawaiian Government Reorganization Act does three things. It establishes the Office of Native Hawaiian Relations in the Department of Interior to serve as a liaison between native Hawaiians and the United States. It establishes the Native Hawaiian Interagency Coordinating Group to be composed of federal officials from agencies which administer native Hawaiian program.

Both of these provisions are intended to increase coordination between the native Hawaiians and federal government. And third, the bill provides a process of reorganization of the native Hawaiian governing entity. I'm very proud of the fact that while the bill provides structure to the process, it also provides the native Hawaiian community with the flexibility to truly reorganize it's governing entity.

The substitute amendment which was adopted by committee on March 9, 2005 further clarified that the enactment of the bill does not establish eligibility for native Hawaiians in Indian programs and services unless native Hawaiians are otherwise eligible for such services. The substitute amendment clearly states that native Hawaiians in federal programs that are established to benefit native Hawaiians and are appropriated separately from Indian programs and services. We never intended to cut into the pie of funding for Indian programs and services and had previously believed that the language in the bill was sufficient to alleviate the concerns of members of Congress. We clarified the bill further and successfully addressed the concerns expressed by Tex Hall, President, National Congress of American Indians, certain members of Congress who are still concerned that the language in S-147 did not adequately protect Indian programs and services. -

As for the prognosis of the bill, I remain cautiously optimistic that given the opportunity for roll call vote and the passage of S-147 we have the necessary votes in the United States Senate to pass the bill. Senator Inouye and I have been meeting with our colleagues to talk about legislation and to address any concerns that they may have about the bill. We've had the full support of our Democratic colleagues for the past six years. In addition, we have support from a number of our colleagues across the isles. I'll continue to meet with my colleagues on the legislation and will do so until the bill is considered by the Senate.

Our biggest challenges in the enactment of the bill remains with the Executive Branch. The White House wields a tremendous amount of authority over the Legislative Branch in terms of which bills are allowed to be considered in the House and Senate. This is due to the majority that the Republican Party currently wields in the House and Senate. That is why I greatly value the efforts of Governor Linda Lingle who has reached out to contacts in the Executive Branch regarding the importance of this bill for the State of Hawaii.

At the end of last session, Senator Inouye and I were able to reach an agreement with Senator John Kyle of Arizona and Senate Leadership that the bill would be considered for debate on a will-call vote in the U S Senate no later than August 7, 2005. I am confident that this agreement will be honored. For far too long, a few members have used Senate rules to prevent this legislation from being considered by the full Senate. I believe these actions were based on the knowledge that we have the necessary votes to enact this bill. I am pleased that the Senate will finally have the opportunity to consider this legislation during the 109th Congress. While we continue to press for immediate consideration in the bill, we do not yet have a firm date for this consideration at the Senate.

The committees second question dealt with what the Hawaii State Legislature should be doing to assist with the implementation of the bill upon enactment. As you know, Section 8B provides that once federal recognition is granted to the native Hawaiian governing entity, the entity then will begin negotiations with the State of Hawaii and the federal government to resolve a number of matters more specifically, the exercise of any governmental powers by the native Hawaiian governing entity. Until that time, the bill does not provide a clear role for the State of Hawaii.

While I see as one of the biggest challenges in implementation will be establishment of the roll, the roll identifies native Hawaiians who meet the definition of native Hawaiian in the bill and choose to participate in the reorganization of the native Hawaiian government. The bill establishes a certification commission to be composed of native Hawaiians with expertise in genealogy to certify that those individuals who are applying to be on the roll meet the definition of native Hawaiian. I anticipate that this process will have a tremendous impact on the state offices that handle birth certificates, marriage certificates and death certificates. The Hawaii State Legislature may be helpful in providing resources to address the increase in demand that these offices will face once native Hawaiians begin to apply to be listed on the rolls.

Finally, I'd like to make a comment about the common misunderstanding about this bill. S-147 is not about redress and it never was. This bill is about process and opportunity. Like I said earlier, I am proud of the balance this bill achieves between structure and flexibility for native Hawaiians to reorganize their governing entity for the purpose of a federally recognized government to government relationship. This is just one of the many steps that we will take as we move forward as a people to provide a better future for our children. The claim section of this bill is intended to protect any claim that anyone may have. This bill has always contained language stating that nothing in this act is intended to settle any claim. This is the same language that I included in the apology resolution to protect any claims it has, it has never been my intent to address claims in the legislation I have drafted to date.

My intent with the apology resolution was to educate members of Congress about the history of Hawaii and in an effort to lay foundation for the process of reconciliation. My intent in drafting this bill is to provide native Hawaiians with the opportunity to reorganize their governing entity for purpose of a federally recognized government to government relationship with the United States. This is important because it provides party in a way the federal government deals in indigenous people who inhibited the lands which have become the United States. There are many more steps that we must take as a people. I believe it is wrong to predetermine the outcome of these long-standing matters in legislation. For that reason, I will deliberately, I have deliberately not sought to resolve long-standing issues, such as land conflicts in the bill. I believe that once the entity is recognized it will be in the position to negotiate these issues with citizens of native Hawaiians controlling the outcome of the process.

Again, I appreciate the opportunity to provide information to Hawaii State Legislature pertaining to the native Hawaiian Governing Reorganization Act. I've included with my statement a copy of the substitute amendment which was favorably recorded by the Senate Committee of Indian Affairs on March 9, 2005. My section by section analysis of the legislation and a power point presentation that my office has used over the past year to explain the legislation. I look forward to working with you. Thank you very much.

Saiki: Thank you. You should have some water now for your throat.

Hanabusa: Thank you very much.

Saiki: Ok, we'll take uh questions from members at this point. Members, any questions? Representative Evans.

Evans:

I'm curious about the idea of people choosing to participate or not. Um, what would be the ramifications if I was Hawaiian and for just some reason, you know, I didn't sign up on the roll and you know, I didn't, maybe just didn't feel, I mean what about. I guess I just don't understand the importance of the choosing part. Can you –-

Abercrombie: It's the same as

Evans: Can you explain how that came out?

Abercrombie: It's the same as someone who chooses not to participate in whether or not you're elected or I'm elected. Uh, they can complain, but they haven't participated. They haven't set a course for themselves to have not just a say in the abstract, but to say in the particular.

Evans: But if it means a citizen of a sovereign nation, would that be like becoming an American citizen. It would, they would be an American citizen but they would not be a citizen of this sovereign nation?

Abercrombie: Well it all depends on the entity that's uh put together. You uh have various tribal combinations in what's called the lower 48 on the mainland and in Alaska the native Alaskans have chosen to go the corporate route, to get establish a corporation to control and to manage assets; money and land. So everybody can go at it from a different point of view. You don't compromise anything that's yours as an American citizen. What the bill intends and what it provides for is the opportunity for an organization to emerge which will be recognized by the federal government as being able to manage those assets.

Evans: Yes, please.

Case: It's just that, uh, familiar with a different angle on it as well. The roll, the roll is not intended to be something permanent and you know, that's it. That's up to the native Hawaiian governing entity. Uh those, those uh considerations are to be made by the native Hawaiian people through their governing entity. The, the purpose of the roll is to provide uh, the federal government at the, the roll is a temporary instrument and the purpose is to provide the federal government with the comfort that what is being brought to them by the native Hawaiian people uh is something in which the native Hawaiian people have participated in the formation of. If the roll later on were to go somewhere else, that would be of the native Hawaiian people. So it's not the be all and end all of participation.

Inouye: It does not automatically grant citizenship. For example, in 1920 the Hawaiian Homelands law was passed. It did not automatically provide that every native Hawaiian who qualified would live on such lands. Most native Hawaiians did not choose to. And those who have are still waiting.

Evans: If someone chooses to be a citizen of the sovereign nation but not a citizen of the United States it wouldn't affect them. I mean if they wanted to be --

Inouye: I don't think the United States government would provide that authority to this new sovereign entity.

Evans: Ok, thank you.

Saiki: Thank you. Senator Hee.

Hee: Thank you Mr. Chair. Members of Congress, thank you for taking the time to visit with us and I want to welcome Pat Zell. I haven't seen Pat , and also Esther back home, so. I appreciate the opportunity and the privilege really to hear firsthand from you folks on the status. I wanted to ask two questions. The first had to do with status and process and I wanted to ask Congressman Abercrombie. I believe he'd be the one that could answer. From what I understand from Senator Inouye is that the Akaka Bill will be heard and voted upon no later that August the 7th 2005.

Abercrombie: Right.

Hee: Now procedurally, how does that work then, with the House. Does the House then take the issue up?

Abercrombie: Yes.

Hee: Does it take the issue up on the Senate bill as it crosses over as is done here?

Abercrombie: Yes.

Hee: So ostensibly then there's no House vehicle to speak of.

Abercrombie: It wouldn't have to be. The vehicle we have in the House is the exact duplicate of what's in the Senate and what I would do at that point is offer a substitute motion to incorporate the, at the time that we take it up, offer a substitute motion that would incorporate the language of the Senate as passed.

Hee: So to the extent that procedurally, the Senate would vote first then the House would then take the matter up. My question is could you comment on what you see prospectively on after August 7th of 2005 assuming that, and there's no reason to believe otherwise, that the Senate will pass by a hefty margin. (20:15)

Abercrombie: What would happen at that point is that the Chairman would schedule a markup to deal with that issue and probably others. There will be a whole bunch of issues that will be in that category and we'll try to move that and direct to agree to the proposal would be to agree to what the Senate has proposed so that a conference on the issue would essentially be moved. It would move to right directly to agreeing with the Senate.

Hee: Would there be a vote or?

Abercrombie: Oh sure, yeah.

Hee: When do you anticipate the vote to occur, prospectively?

Abercrombie: It'll be on, wait a second

Hee: August 8th?

Abercrombie: Yeah, September.

Hee: In September?

Abercrombie: Yeah, I'm looking a my schedule here um, because we'll be out in August. Probably within the first couple weeks of September. If it was as late as August 7th. I mean, it could be that it's taken up in July, but if it was August 7th, the House would already be out of session and we would be on recess, so the earliest we'd probably be dealing with it is the first couple weeks in September.

Inouye: Mr. Chair, if I may. We cannot assume that the measure that we reported out of the Senate Committee and considered by the Senate would leave the Senate in the same form because it is subject to debate and subject to amendment. And I have no idea what the Senate will do. But I'm certain that we can defeat amendments that we feel may not be helpful. But on the other hand, some member or some colleague may come forth with a suggestion that we should seriously consider. So, it could be a longer process.

Abercrombie: I'm resolved in any event to take what emerges and present that to the House.

Hee: My second question has to deal with,uh, the authorization of what the bill allows or may preclude. Based on the handout it's clear that, on the handout provided, that evidently this bill does not authorize gaming, for example.

Abercrombie: That's right.

Hee: And it authorizes the eligibility for native Hawaiians to participate, does not authorize eligibility for native Hawaiians to participate in Indian programs. And those were the only two bullets that were provided. My question has to do with non-Hawaiians. This bill evidently I'm concluding is silent on non-Hawaiians and in fact goes to the extent that it's up to Hawaiians to decide. Now I'm not sure if I'm reading too much into the bill, if this bill precludes non-Hawaiians from participating in some form or another. Or it precludes Hawaiians from making that determination. Would you offer a comment on that, I guess, Senator?

Abercrombie: You mean on the question of gambling?

Hee: No, on citizenship as part of the nation, the new nation, the new sovereign nation, because it's clear that in 1893 non-Hawaiians were citizens of the nation of Hawaii and that always will become an issue.

Inouye: I would assume that once the sovereignty is achieved by the native Hawaiians, that organization, whatever you want to call it, nation or government, would have the authority to determine the citizenship of the people participating in that nation. I have no idea what the native Hawaiian entity will do. But in order to begin the process, we have said you have to trace your ancestry to January the 1st, 1893. And throughout this bill you will see the participation of non-Hawaiians. Now for example, will the Honolulu Police Department have the authority to go on Waianae and arrest and incarcerate people? Or is that authority to be granted to the new native Hawaiian entity? I have no idea.

Case: I think the only place in the bill that there is a definition of native Hawaiian where a provision of the bill is restricted to the definition of native Hawaiians that we're talking about is in the roll.

Inouye: Yep.

Case: Because, and I think that that's fair and exactly right that the native Hawaiians determine the roll, determine the organic documents and after that again in the spirit of self-determination, the native Hawaiian people can make a determination as to the extent to which they want to make the resources and rights available to those who are technically nonnative Hawaiians so it's really up to the governing entity at that point.

Abercrombie: Or what kind of relationship, legal or otherwise, they want to have.

Case: And I think it's also important to note that some of the things that we talked about here don't happen automatically under the bill. What happens automatically under the bill assuming that the Secretary of the Interior, the federal government approves the organic documents. There is a shell formally extend federal recognition at that point. The negotiations over the other issues we've raised are negotiations, they're not unilateral, so one side can say Yes or No, and that's what we've got to walk ourselves through. So it's not, there would be a point, of course, at which there was full rights and responsibilities and ability of the native Hawaiian people to determine within the result of those negotiations whether they did or didn't want to extend the rights to nonnative Hawaiians. But, you know, we've got a long process here to walk through and as Senator Inouye points out, that we're all gonna be involved one way or the other. But we have to, of course, recognize that again, the key here is self-determination.

Abercrombie: That's one of the advantages, at least from my point of view, of considering the way the native Alaskans went and put things together. My own view is if they had far less problems from a governing sense, than by trying to set it up in terms of in the context the way some of the tribes in the lower 48 have, some of the problems they faced, I think, would have been more easily resolved had they moved in the direction the native Alaskans have gone. But that's just an observation to deal with the practical consequences of what you're talking about.

Hee: I just wanted to be sure there was, there wasn't any federal prescription [proscription?] on citizenship.

Abercrombie: No. Just to start, just exactly what Senator said and this by the way has been the case to my knowledge in every single one of these instances in which federal recognition has been extended. First you deal with the indigenous people and the definition of it then after that it's up to them to make all decisions with regard to membership and responsibilities and obligations.

Inouye: Again, a good example is the citizenship of American Indians. In some tribes, you have to demonstrate that you have a blood quantum of 50%. In others, all you have to do is to be able to trace your genes to some ancestor 5000 years ago. And as a result, you will see tribes that are fair of skin or tribes that are dark of skin and the determination of citizenship is always one of the prerogatives and authority of the sovereign entity. Now for example, this is far fetched, but if in years to come this new native Hawaiian governing entity should decide that the son of Neil Abercrombie should become a citizen, that can be done.

Abercrombie: That's already been taken care of by my godson. (laughs) I have a ringer.

Hee: Thank you, thank you Mr. Chairman.

Saiki: Representative Berg.

Abercrombie: Uh, excuse me, Mr. Chairman. I meant no, all you have to do is look around this room and see what happens with citizenship. So, right?

Berg: Thank you, Congressman. Thank you gentlemen for spending the time with us this morning. I'd like to go back to a couple of comments that you made earlier and I'm looking in particular at, I'm more of a sociologist than a political although I'm learning quickly. We've been talking here about the political document and the political ramifications and the judicial kinds of consequences as well. I'm very concerned being a non-Hawaiian but having a part-Hawaiian son. We're moving toward a new era. Whether or not this bill goes through in its form, you know, in a new era and there's a tendency to have an "us" and "them" perspective. Not from any of us at the table or those in the room, but those who are unaware and uninformed of the ramifications of this bill. My question to you is, you know we can move into an era with fear or we can move into that same space with fascination. How might we minimize, that's us at the state level, how might we address those tendencies to have "us" and "them" attitudes and actions that occur because that's of great concern to us here in Hawaii for the sustainability of our culture, but also of the lifestyle of inclusion and collaboration that we hold so dear.

Inouye: Well, I believe that the history of this state, the territory and the kingdom would clearly indicate that what we're trying to achieve is nothing new. It's been here and I think the people of Hawaii have throughout the decades supported this, it's not "us" and "them". For example, at this moment, native Hawaiians are celebrating the Merrie Monarch festival on the Big Island. It's not something that just the native Hawaiians are interested in and we support for example, the birthday of King Kamehameha. It's not a matter of "us" and "them". We have been, well, brought up to understand that native Hawaiians were here before we came along. That they had a great civilization. That what we're trying to do is to make certain that this civilization is recognized. And that given some official, legal, federal and state recognition. Now the state of Hawaii through it's legislative body could very well pass this resolution indicating, and I'm certain before you pass it you'll have debates and you'll have committee hearings. At that time those who wish to support it may do so, who wish to oppose it will do the same.

Abercrombie:

The question is really a good one and takes me back to my original mentor on this when I was elected in 1974. And I think it's the principal reason why I support this bill so vociferously right now and want it to pass and submit to you that it needs to pass now. My original mentor on this was Richard Kawakami because I was assigned to what was then a native Hawaiian water and land committee, right? Interesting, right, native Hawaiians, water and land. You remember how this was. And Richard kinda guided me, I had no clue about it, don't feel bad about just starting out in the Legislature, believe me, I followed along. And at the end of the time, this was before he became speaker, I said to him one day, and I remember right now, on the floor, where I was on the floor, and I said to him "Why are we doing this? Why are we doing this? Why am I voting on these things? Why don't the native Hawaiians, why don't we just turn this over, all of this that we're dealing with in the Legislature?" And you're still dealing with the same thing today that Richard was dealing with back in 1974 and I presume before that and will keep on being dealt with if we don't do this.

I believe, and I think any objective assessment of the situation would affirm that if we don't pass this bill and don't begin these negotiations and conclude them in a time certain , that this will continue to drift with demoralization and dissension and disillusionment taking permanent hold with all that that means in terms of the diminuation of cultural awareness and the "us" and "them" attitude will really take sharp focus and we may not be able to recover from it.

The "us" and "them" back in 1974 was "us" saying as legislators "We really need to get this out of our hands to them" that is to say the people and the institutional context within which the native American, uh, native Hawaiian people were dealing with, the context within which they were dealing into a framework that they can make their own decisions about it. Because we certainly weren't going to be able to to it. We constantly ran up against the brick wall of all of us making decisions about something, just take the ceded land questions, over and over again making these decisions that clearly were, should have been the province of the native Hawaiians. So the sooner we move institutionally to set that in motion, the better off not only we'll be, but the question of "us" and "them" will disappear.

Case:

I think that's a great question. It allows us to go to the big, big, big, big picture and I take it from the big, big, big picture as a policy maker responsible like you for making the best decisions for our entire state now and well into the future. And I also take it like you, as a non-native Hawaiian with native Hawaiian children so I think there's two different emotional planes that I operate on. I think we need to obviously have a common goal. The best way to avoid division is for everybody to have a common goal; to agree on the end goal and why the end goal is important, And I think the end goal of federal recognition is clearly to have a permanent sustainable place for the native Hawaiian people within their own homeland and within our country and our world. That's my end goal. And I think that you can believe in that end goal for one or both of two reasons. The first reason is that it is simply fair, just and right to do for the native Hawaiian people.

Because we believe that an indigenous people have the right to self-determination in general and because one believes that the history of the native Hawaiian people in their own land as an indigenous people has not been fair, just and right. And because you believe that the answer is to provide the same level or the same type of self-determination within our United States as is enjoyed by other indigenous peoples and cultures.

You can take it from the native Hawaiian perspective in other words. And decide as a policy maker or a citizen why it's important from a social and historical perspective. That will be good enough for many many people, but not all people.

How you get the rest of the way or how I have certainly presented it to those for whom that argument doesn't work and let's acknowledge first of all there are going to be people within our state and our country that will never agree to federal recognition for native Hawaiians. I think they're a minority but they're there and they can't drive this car and we shouldn't let them drive the car. We should acknowledge their perspective, discuss it but at some point you can't let a pretty small minority prevent what is the right thing to do, what the majority wants and will support.

The second level from my perspective is how do you preserve Hawaii? We want to look back in 50-100 years and well, I don' t think anyone in the room has 100 years on them. But certainly I want my kids and grandchildren to look back and see somewhat the same Hawaii if not a better Hawaii than what I see today. And what is the core of that Hawaii? We have a beautiful state, uh there are other beautiful places in the world. We have a ethnically diverse state. You would find so many things that are unique in this world.

But frankly you want to go. Myy colleague and Neil's colleague Joe Crowley argues with us. He represents the Bronx as I recall, and he argues with us all the time about how he has a much more ethnically diverse place than we do. We think we do, he thinks he does. The native Hawaiian people is what is unique to Hawaii and it is their culture, their spirit that has infused Hawaii with it's uniqueness. And I want to see that preserved, because I believe that by preserving that, and how do you preserve it? Empowerment, self-determination. You look at every indigenous peoples throughout this world. Those that have survived and prospered have had the ability to determine their destiny, for the most part. They have other resources to implement the destiny that they want. Those that have faded from the face of this earth have not, they have not been empowered. And I believe that with that empowerment you will have the ability to maintain the core of Hawaii. That's my big picture.

Saiki: Thank you. Representative Kanoho.

Kanoho: Thank you Chair. And again, our thanks to our Congressional delegation for being here and for your efforts through all the years and support and encouraging words. My primary question was covered by Senator Hee, but related to that if you could clarify the comment about the House being unwilling or at least reluctant to act on the bill until it learns of the President's position. That that the Senate, is understandably, because it doesn't want to put its President of the same party affiliation in that dilemma, but the Senate is willing to act on it. Does that mean the Senate holds a better reading of the Senate, uh, President's position or simply the last house has the onus of not wanting to create that dilemma?

Abercrombie:

Well all I can give you, uh, the history to this point. We passed the bill out of committee, the previous form of the bill, out of committee in the House and took it to the floor, got the vote there and passed it out of the House to the Senate before. Then various political difficulties made themselves manifest in the Senate. At that time the reason for moving it forward was even though it was a Republican House, Republican leadership is that the Executive was in favor of the bill. And we had no objections from members of the House on the basis of any partisan divide, Republican or Democrat. When we passed it out of committee again, don't forget we passed it two more times out of the committee again with Republican and Democratic votes, I can't say for certain it was unanimous each time, I don't remember. There was voice votes on it because it was not controversial. There may have been some reservation, but for all intents and purposes it passed with no dissent. But when it went to the floor then with the full support of the Republican chairman, each time, the majority leader of the House first Mr. Army, and now Mr. Delay said that they'd be perfectly content to put it on the floor but they were being stopped because the White House hadn't approved it. And they didn't want to put it on the floor for a vote, not because they didn't think it would pass, quite the opposite, they thought it would pass if it was put on the floor and they didn't want to do that because of reservations at the White House level. And that took place even in the language, of the kind of placeholder language we had at the end of the last session of the Congress when the White House stepped in and stopped even that language from coming in. So, there are political reservations there that need to be addressed. Now we're doing our best to address them and deal with them forthrightly so that's simply the logistics of the bill. I think that we could get the support of the membership of the House, Republican and Democrat including that of the leadership. There's never been any expression to me that it had anything to do even with Republican-Democrat in that sense.

Kanoho: Since the key question is the President, are you satisfied that we've, you've made the effort that all the organizations including the legislature and we appreciate your comment Senator Army passage of a resolution, we do have a resolution we'd like for you to see it too, because from our prospective it may be what we think it did but you may be in a better position to know the tenor and make sure that we don't inadvertently turn people off, and then...

Abercrombie: I think it would have the opposite effect. Back when Governor Lingle was chairman of the Republican Party, I included in the packet that Patsy, then Representative Mink and I put forward, we included in the packet the, in fact I emphasized then to each of the chairmen and to the leadership then of the Republican majority in the House that this had the support of then Chairman Linda Lingle of the Republican Party and unanimous support of Republican members of the House and Senate and that was a keystone at least in my presentation in the House and Ed and I have continued that assiduously making the same representations and having at the top of our packet of information when we present it to members that now Governor Lingle and the legislature have been supportive. So believe me, it's not going through the motions for you folks to do that and I would of course take any representation that Governor Lingle wants to put formally into a packet and be happy to present that as well.

Kanohoo: Well the question had to do with the strategy to convince the President and obviously his advisors who may be involved and the kind of effort, who we should, who should we be speaking with and who from here should be doing the talking and making those approaches in Washington. We don't need to cover that but the point is this is something that we really need to nail down, make sure...

Abercrombie: Well, it's quite obvious that the Governor , I mean I haven't been invited to sleep in the bedroom yet there so, so I'm quite, I'm sure that she could, she has access, let me put it that way.

Case: We'll be certain to give you the White House switchboard number Senator Kanoho. You know, I think they know it, Excuse me, in all seriousness that's a good question. We all have to utilize the full range of our own relationships and our own structures to put the argument forward. It does have to be centered primarily on the White House. We all believe right now, It is important on both the House and the Senate side. This isn't a you-know, Senate doesn't care about the White House support issue, the House does. It's not like that. Both sides care about that. So I think as we kind of think it through right at the table here, clearly of course, we're all on the same page that obviously the Governor needs to exert the full range of her administrational relationships with the President personally to gain the support of the White House. Clearly we are doing the same thing in the Congress both with our colleagues on both sides of the aisle, but also back with the administration and a whole range of issues and there's absolutely no (unintelligible) problem from our perspective with the legislature itself communicating on a systematic leadership organized basis with the White House.

Abercrombie: Many of you have friends that you've made through legislative conferences and so on. People who have come to Hawaii and you've been up there. Contact them and ask for their support with their members, that would be great. I can tell you the White House liaison, they're very friendly to us and we're in contact with them, with the Justice Department and with the Interior Department and I think on the whole this is really a political decision that's being made at the Executive level and so I think everything's on track to try and make that as easy as possible.

Kanoho: Thank you. Thank you very much.

Saiki: Representative Halford.

Halford: Uh, thank you chairman. Thank you very much for your leadership on this issue and for sharing with us today. I wanted to just ask a followup question, I guess. It was mentioned that this bill provides that when the initial roll is being established there'll be a tracing of lineage from the person today back to citizenship of the kingdom of Hawaii. So the question is: In establishing that initial roll, will citizenship be the only criteria? As it was pointed out that, within the ranks of being a citizen of the kingdom of Hawaii there were Asians and Caucasians as part of that base? Or part of that group. Were there any other further clarifications?

Inouye: An important description they had to be indigenous.

Halford: Thank you.

Saiki: Thank you. Members, any other questions? Representative Evans.

Evans: Thank you. In my district, West Hawaii, there are a lot of people that are new to the islands and consider themselves residents and citizens here and my question is used to help me explain to them in ways that maybe they can understand it. And the example I thought of is education. So in the future if there's a sovereign nation, when we come to issues on education, will it be under the Department of the Interior and how they deal with native Americans on the mainland or do you see it as a whole, that they still fit in our education system as it stands today and there would be no changes. Or is there even a third option, an option being the, this commission or council of the elected officials of this sovereign nation decide how they want to educate. I mean, that's a third. So how could I explain what the future might look like in education, once this...

Inouye: This is a question that Representative Berg touched upon, "us" and "them". In the negotiations, if the negotiators are foolish enough to come forth and say this new sovereign entity, with citizens, would not have to pay any tax then it would be an "us" and "them". Or if we, and the negotiators would say, "Ok, you're in charge of education for your children. You will not be permitted to send your kids to our schools". This will be a brutal "us" and "them". I'm certain when the negotiations are concluded it will come forth and state very clearly that the citizens of this new sovereign entity would be subject to all the laws, just about all the laws of the federal government. For example, in time of war, may have to put on the uniform. I cannot see a negotiation saying, "Hawaiians need not participate in the military." Or "Hawaiians will not be permitted to participate in the military." So the negotiations will decide whether it becomes "us" and "them".

Abercrombie: You have to keep in mind here, that, so it's clear. I'm glad you asked the question, ‘cause maybe it's something we've taken for granted and didn't necessarily realize that that might have, create an issue for somebody.

Nobody is gonna renegotiate the Constitution. We're talking about federal recognition here. This is the reality of where we are today. Everything that applies, statutorily, from the City and County of Honolulu or the City, the County of Maui or Big Island, whatever it is, the state, the federal laws, all of that applies. You don't nego...that's not being negotiated. What's being negotiated is the relationship that'll take place within that context.

Department of Education continues to have sway and all the rest of you continue to elect members of Congress, you continue to have the application of federal law, state law, city and county law, taxation, everything else.

When it comes to the management of the assets, human and otherwise, that exist, like the ceded lands or the question of the homestead lands, the money that is presently in the coffers of the Office of Hawaiian Affairs, the utilization of or negotiation of the percentage of funds that will come from leasing of ceded lands for use by other entities like airports or universities or whatever it is. All that's to be negotiated. Somewhat, I think probably the template for it is what the state already did with OHA. That probably becomes the, not necessarily the example, template, I think that's the word I'm looking for here. A reference point for the kinds of things that we're talking about with negotiations. Nobody's gonna be hauled out of their houses, or , all of these things that get brought up occasionally, which I thought had been dealt with already.

Case:

I think it's a very good question, because I think everybody has to have some basic avenue of buy-in, which I think is what you're saying. And I represent the same people that you do, in West Hawaii and elsewhere that for whom this is unusual. I mean, this is not something that they grew up with, it's not something that they, you know, I mean frankly and we've been at the same "talk-stories" together, sometimes I've simply said, "Well, why did you move to Hawaii? What was special about Hawaii that made you want to be a part of our world?" Think about it. Was it just the scenery? Was it just the uh you know tourist brochures? Or was is something deeper? And usually that gets people thinking that yes, of course it was in part the native Hawaiian core of Hawaii so that works.

On education I think it's a very good point. I think certainly uh we're not talking about reinventing anything here. We uh have a whole range of federal educational programs for the benefit of native Hawaiians, the Native Hawaiian Education Act which Senator Inouye was responsible for which brings 33 million dollars per year to this state. And that's a benefit not just to native Hawaiian uh children but to all children because it is a contribution to our education system. That program may uh be endangered absent federal recognition. So there's a reason from that perspective to maintain that support,

Uh as Neil says, the Office of Hawaiian Affairs is already funding through existing structures educational opportunities for our native Hawaiian children in which uh there's a wide participation. So we're not reinventing a model here, where the focus is on education, we can talk education, if somebody's interested in economic development we can talk that. If somebody wants to talk about health care for our people, we can certainly talk it from that perspective too. This can work, whatever the person is interested in.

Abercrombie: Everything that is already in existance continues, it's just that if we are able to accomplish this it will get better. Because it means that, as Ed put it, the buy-in for Hawaiians is going to be such that anything that's underway now in terms of education, health care, economic development, will be enhanced and promoted and supported more directly and more fundamentally and to a greater extent in terms of self-confidence that it's being self-directed rather than being handed down from above or being commanded from elsewhere.

Saiki: Representative Kanoho.

Kanoho: Thank you. A very quick question. We've been looking at passage of this bill to protect Hawaiian entitlement . With the passage of this bill would it put to rest the challenges on those entitlement, the challenges before us with the very existence of OHA, Department of Hawaiian Homelands and even some of the uh Hawaiian trusts.

Inouye: Without this measure, the status of the native Hawaiian would not be clear. As a result, uh it's in the court at the present time. The premise being that native Hawaiians do not, are not entitled to special recognition. Rice vs. Cayetano, for example. Now if this bill passes, native Hawaiians would have the recognition the native Indians have, because if you don't have the recognition, the court could possibly suggest that uh this is in violation of the Constitution of the United States. Under the Constitution, Indians have been specially dealt with as a separate entity.

Abercrombie: The passage is again a good question, because while reference can be made constitutionally to the idea that Indians, their tribal entities that have been recognized some 500 plus entities there have special recognition in the Constitution. Believe me, the passage of the native Alaskan bill, you can be very grateful for that, has established the idea that indigenous people do have a special relationship which can be recognized and pass constitutional mustard. That's what this bill is all about. Absent this bill, I fear, that all you need to have then is a sufficient number of people on the Supreme Court eventually who have no understanding or appreciation or comprehension of what we're talking about here today. And that could disappear, the entitlements that you mentioned will disappear because the special relationship will not exist, at least as far as they're concerned.

Kanoho: So, from your response it would appear then that the passage of this bill in and of itself would not cause those challenges to cease but it would strengthen the case in the Supreme Court?

Abercrombie: It may cause challenges to come to it, but I don't think they would succeed.

Case: Yeah, I think that's exactly right. You know, the, again we're not following some unique model here. We're following a model that's been established in our federal law for 150 plus years. The exercise of the primary power of Congress, the inherent power of Congress, to negotiate and provide for relationships with the indigenous peoples of our country. That's been attacked, defended successfully over well over a century. It's established law. So it clearly, the passage of this bill does, give people like Attorney General Bennett and others a much better perspective from which to defend the programs that are in existence or that may come into existence. But for us to say that the bill itself will somehow help those legal challenges, that would not be a right thing to say to you. There are lawyers that have made an entire cottage industry out of native Hawaiian legal issues both within our state and beyond our borders and they don't want to give up the bills quite yet and I don't think we can anticipate it. But will it move the situation and the issues through the courts towards what I believe would be a successful resolution faster, yes.

Kanoho: So when that weakens the challenges sufficient that it may cause the challengers to think about it and see, that's something that remains to be seen.

Case: Yeah, I mean I think that's accurate.

Abercrombie: You have a situation in which a native people who have nothing, or seem to have nothing, nobody cared. Nobody gave a damn one way or the other. But now that it looks like there's real questions of land and money, all of a sudden you've got a whole bunch of people interested in whether they're being discriminated against. That's really what it comes down to. So I can assure you, I can assure you there are going to be people out there ideologically motivated or motivated by their pocketbooks who will continue to make this attack. That's why we have to get a strong and viable native Hawaiian entity underway as soon as possible because we're going to have to defend against that, probably for a long time to come.

Kanoho: Thank you.

Hanabusa:

Thank you very much. We do know that you've given up some precious time to be here with us and we're getting the signal that we are out of time here. So I would just like to make some closing remarks. On behalf of the two committees, we do appreciate the time and effort coming here. We also would like to say that we've had a request and we are going to extend this hearing to the relevant administrative entities. Attorney General's office, DHHL and of course OHA and others and we're going to continue the education process on this issue.

We really wanted today to be dedicated to learning what the status of S-147 was and we do appreciate that. I'd like to say that this whole matter, as we all know, began with the Rice v Cayetano issue and that has brought it to the forefront. I was one of those who were permitted to testify before all of you on September 2000 and has followed this issue all the way through. I think that what we do know from the experiences in Rice v Cayetano where the legislature did go out to all the islands to discuss it. With Attorney General's office, OHA, everyone in tow to try and alleviate the concerns, or address at least some of the concerns is that we do now have not only the native Hawaiian issues, and the native Hawaiian's concerns which Rice v Cayetano raised but we do have what you're hearing with Representative Evans and Representative Berg brought out is you have the sense of the non-Hawaiians.

I was at a panel for Representative Berg, I don't know if she remembers, it was when she had her TV show and someone called in and said,
"You know, how can you support native Hawaiians because that means they're gonna take my land" and it was those kinds of issues and they all made their concerns. I go on labor talk shows and I get "How can you support native Hawaiians when they're gonna do away with labor laws" which are all, as Senator Inouye says, that's not the intent of all of this. But clearly, it's an education process.

OHA, the Council for Native Hawaiian Advancement, SCCHA and of course Hui Ka Ko, Blossom's organization, has done a great job in educating the native Hawaiians but I think we, as a legislative entity must take on the other part of it, which is the education of everyone else.

Because, as Representative Case says, and all of you are saying, we need the buy-in. We need people to understand that this is not fear, this is not losing what you have. This is a matter of doing, what many of us believe is right, and the just thing to do, and the moral thing to do. And I think as a legislative body, we must do our share in that process. So we will convene another informational briefing and at that time we're going to invite the state entities to come forward and the Attorney General, we're going to request that he play in on the, many of the legal issues and rights that people are so afraid of when they think about this. But with that note, we'd like to thank you. We know that your time is precious when you're back here and we really do appreciate it. On behalf of the Senate and the House, thank you very much.

===============

*** Statement of Senator Akaka as taken from his own Senate website, which was read aloud by Senator Hanabusa in his absence. ***

Chairman Hanabusa, Chairman Saiki, and committee members, mahalo for the opportunity to share information pertaining to S. 147, the Native Hawaiian Government Reorganization Act for 2005, legislation I have introduced with Hawaii's Congressional delegation to extend the federal policy of self-governance and self-determination to Native Hawaiians. I regret that I am unable to join you this morning. I had previously scheduled appointments with students on Maui that I was not able to reschedule upon learning of today's briefing late last week.

I have been informed that your committees are interested specifically in the prognosis of the legislation during the 109th Congress and in learning what the Hawaii State Legislature should do, if anything, after the enactment of the legislation. I thank you for your support for this bill. As you know, we have been working to enact this legislation since 1999. We appreciate the resolutions passed by the Hawaii State Legislature in support of federal recognition for Native Hawaiians. We have also been working very closely with Governor Linda Lingle to enact this measure. I have made clear to my colleagues in Washington, D.C. that this is a nonpartisan issue. This is a team effort and we greatly appreciate the efforts of everyone involved who is working to enact this bill.

BACKGROUND

Before I address your two questions regarding the bill, I'd like to provide some background on the legislation. S. 147, the Native Hawaiian Government Reorganization Act, was introduced on January 25, 2005, and was referred to the Senate Committee on Indian Affairs. On March 1, 2005, the Senate Committee on Indian Affairs held a hearing on the legislation. Witnesses included Governor Lingle, who was accompanied by Hawaii State Attorney General Mark Bennett and Hawaiian Homes Commission Chair Micah Kane; Haunani Apoliona, Chair, Office of Hawaiian Affairs Board of Trustees; Jade Danner, Vice-President, Council for Native Hawaiian Advancement; Tex Hall, President, National Congress of American Indians; and Julie Kitka, President, Alaska Federation of Natives.

On March 9, 2005, the Senate Committee on Indian Affairs voted to adopt a substitute amendment offered by myself, Senator Daniel K. Inouye, and Senator John McCain. The Committee also voted to favorably report the bill as amended. On March 18, 2005, Senator Inouye and I wrote to the Majority Leader Bill Frist and Democratic Leader Harry Reid to request that S. 147 be brought before the Senate for debate and a roll call vote at the earliest opportunity.

The Native Hawaiian Government Reorganization Act does three things. It establishes the Office of Native Hawaiian Relations in the Department of the Interior to serve as a liaison between Native Hawaiians and the United States. It establishes the Native Hawaiian Interagency Coordinating Group to be composed of federal officials from agencies which administer Native Hawaiian programs. Both of these provisions are intended to increase coordination between the Native Hawaiians and the federal government. And third, the bill provides a process of reorganization of the Native Hawaiian governing entity. I am very proud of the fact that while the bill provides structure to the process, it also provides the Native Hawaiian community with the flexibility to truly reorganize its governing entity.

The substitute amendment, which was adopted by the Committee on March 9, 2005, further clarified that the enactment of the bill does not establish eligibility for Native Hawaiians in Indian programs and services, unless Native Hawaiians are otherwise eligible for such services. The substitute amendment clearly states that Native Hawaiians have federal programs that are established to benefit Native Hawaiians and are appropriated separately from Indian programs and services. We have never intended to "cut into the pie" of funding for Indian programs and services and had previously believed that the language in the bill was sufficient to alleviate the concerns of Members of Congress. We clarified the bill further and successfully addressed the concerns expressed by Tex Hall, President, National Congress of American Indians, and certain Members of Congress who were still concerned that the language in S. 147 did not adequately protect Indian programs and services.

NEXT STEPS FOR S. 147

As for the "prognosis" of the bill, I remain cautiously optimistic that given the opportunity for a roll call vote on the passage of S. 147, we have the necessary votes in the United States Senate to pass the bill. Senator Inouye and I have been meeting with our colleagues to talk about the legislation and to address any concerns that they may have about the bill. We have had the full support of our Democratic colleagues for the past six years. In addition, we have support from a number of our colleagues across the aisle. I continue to meet with my colleagues on the legislation and will do so until the bill is considered by the Senate.

Our biggest challenge in the enactment of this bill remains with the Executive Branch. The White House wields a tremendous amount of authority over the Legislative Branch in terms of which bills are allowed to be considered in the House and Senate. This is due to the majority that the Republican party currently wields in the House and Senate. This is why I greatly value the efforts of Governor Linda Lingle who has reached out to her contacts in the Executive Branch regarding the importance of this bill for the State of Hawaii.

At the end of the last session, Senator Inouye and I were able to reach an agreement with Senator Jon Kyl (R-AZ) and the Senate Leadership, that the bill would be considered for debate and a roll call vote in the U.S. Senate no later than August 7, 2005. I am confident that this agreement will be honored. For far too long, a few members have used Senate rules to prevent this legislation from being considered by the full Senate. I believe these actions were based on the knowledge that we have the necessary votes to enact this bill. I am pleased that the Senate will finally have the opportunity to consider this legislation during the 109th Congress. While we continue to press for immediate consideration of the bill, we do not yet have a firm date for its consideration in the Senate.

ROLE OF THE STATE LEGISLATURE UPON ENACTMENT OF S. 147

The Committees' second question dealt with what the Hawaii State Legislature should be doing to assist with the implementation of the bill upon enactment. As you know, section 8(b) provides that once federal recognition is granted to the Native Hawaiian governing entity, the entity then will begin negotiations with the State of Hawaii and the federal government to resolve a number of matters, most specifically, the exercise of any governmental powers by the Native Hawaiian governing entity. Until that time, the bill does not provide a clear role for the State of Hawaii.

What I see as one of the biggest challenges in implementation will be the establishment of the roll. The roll identifies the Native Hawaiians who meet the definition of Native Hawaiian in the bill and choose to participate in the reorganization of the Native Hawaiian government. The bill establishes a certification commission to be composed of Native Hawaiians with expertise in genealogy to certify that those individuals who are applying to be on the roll meet the definition of Native Hawaiian. I anticipate that this process will have a tremendous impact on the state offices that handle birth certificates, marriage certificates, and death certificates. The Hawaii State Legislature may be helpful in providing resources to address the increase in demand that these offices will face once Native Hawaiians begin to apply to be listed on the roll.

RECONCILIATION AND RECOGNITION

Finally, I'd like to make a comment about a common misunderstanding about this bill. S. 147 is not about redress and it never was. This bill is about process and opportunity. Like I said earlier, I am proud of the balance this bill achieves between structure and flexibility for Native Hawaiians to reorganize their governing entity for the purposes of a federally recognized government-to-government relationship. This is just one of many steps that we will take as we move forward as a people to provide a better future for our children.

The claims section in this bill is intended to protect any claims that anyone may have. This bill has always contained language stating that "Nothing in this Act is intended to settle any claims." This is the same language that I included in the Apology Resolution to protect any claims as it has never been my intent to address claims in the legislation I have drafted to date. My intent with the Apology Resolution was to educate members of Congress about the history of Hawaii in an effort to lay the foundation for the process of reconciliation.

My intent in drafting this bill is to provide Native Hawaiians with the opportunity to reorganize their governing entity for the purposes of a federally recognized government-to-government relationship with the United States. This is important because it provides parity in the way the federal government deals with the indigenous peoples who inhabited the lands which have become the United States. There are many, many more steps that we will take as a people. I believe it is wrong to predetermine the outcome of these longstanding matters in legislation. For that reason, I have deliberately not sought to resolve longstanding issues, such as land conflicts, in this bill. I believe that once the entity is reorganized, it will be in a position to negotiate these issues for its citizens with Native Hawaiians controlling the outcome of the process.

CONCLUSION

Again, I appreciate the opportunity to provide information to the Hawaii State Legislature pertaining to the Native Hawaiian Government Reorganization Act of 2005. I have included with my statement a copy of the substitute amendment which was favorably reported by the Senate Committee on Indian Affairs on March 9, 2005; a section-by-section analysis of the legislation; and a PowerPoint presentation that my office has used over the past year to explain the legislation. I look forward to working with you.